Omission Suspicion: Juries, Hearsay, and Attorneys' Strategic Choices

MEMCONS: How Contemporaneous Note‐Taking Shapes Memory for Conversation

“…Chief among the concerns justifying this approach is that juries will not be able to properly evaluate whether out‐of‐court statements—including memcons—are credible and reliable (see generally Tribe, 1974; Imwinkelried, 1989; Sevier, 2014). To this end, it would be interesting to empirically evaluate mock jurors’ beliefs about the completeness and accuracy of memcons (see generally Sundby, 2022; Sevier, 2014; Jaeger, Levin, & Porter, 2017; Rachlinski, 2003). Do jurors’ (mis‐)understandings of memory lead them to overestimate the evidentiary value of memcons?…”

“…If a memcon does not fall within an exception or exclusion, X will generally not be able to put it into evidence to prove that the things that it says are true. Chief among the concerns justifying this approach is that juries will not be able to properly evaluate whether out‐of‐court statements—including memcons—are credible and reliable (see generally Tribe, 1974; Imwinkelried, 1989; Sevier, 2014). To this end, it would be interesting to empirically evaluate mock jurors’ beliefs about the completeness and accuracy of memcons (see generally Sundby, 2022; Sevier, 2014; Jaeger, Levin, & Porter, 2017; Rachlinski, 2003).…”

A Statute Overtaken by Time: The Need to Re-Interpret Federal Rule of Evidence 803(8)(a)(iii) Governing the Admissibility of Expert Opinions in Government Investigative Reports

“…There is a widely held belief among litigators that jurors discount hearsay testimony when there is no evident reason explaining the proponent's failure to call the declarant as a witness. 312 However, in 1993, Milton's scythe of Time overtook that interpretation of Rule 803(8)(A)(iii). 313 In that year a significant amendment to Federal Rule of Civil Procedure 26 took effect.…”